DEUMELAND v. GERMANY - 9384/81 [1986] ECHR 3 (29 May 1986)

judgment of 13 July 1983, Series A no. 66, p. 11, para. 24). (i) Degree of complexity of the case 79. The main issue raised by the case consisted in determining whether the fall of Mr. Deumeland's father when returning home from an appointment with an ear-nose-and-throat specialist whom he had consulted on leaving his workplace (see paragraph 10 above) constituted an industrial accident or an accident on the way to or from work for the purposes of the Reich Insurance Code. The competent social courts had in particular to satisfy themselves that the work superiors of the father had spoken to him about his hearing problems and asked him to seek treatment in the interests of the service (see paragraph 11 above). This was above all a question of fact to be elucidated by taking evidence from a few witnesses. Furthermore, no difficult legal issue was involved. The Government, moreover, did not contest this. (ii) Behaviour of the applicant 80. At various stages, Mr. Deumeland Junior took steps that slowed the progress of the proceedings. Certain of these steps disclosed, if not a wish to obstruct, at least an attitude of non-cooperation. This was so, for example, as regards the challenges he made - five in total - against one judge on the Federal Social Court and three judges on the Berlin Social Court of Appeal (see paragraphs 22, 25, 33, and 37 above). These challenges were dismissed as unfounded, with the exception of one which was withdrawn by the complainant. In addition, several acts or omissions on the part of the applicant were such as to complicate the task of the courts. The Court need only cite the most noteworthy, namely the filing of written pleadings the day before hearings (see paragraphs 16 and 40 above), making requests for extension of time-limits (see paragraphs 18 and 42 above) or for rectification of the statement of facts included in a judgment and subsequently in the decision rejecting the original request (see paragraph 17 above), being incapable of helping the court to trace a document lodged by himself and asserted by him to be of importance (see paragraph 26 above), objecting to the communication of files and declining to submit comments (see paragraph 30 above), refusal to produce an inheritance certificate (see paragraph 35 above). In sum, the applicant did not display the diligence to be expected of a party to litigation of this kind. He thereby contributed to prolonging the proceedings (see, mutatis mutandis, the Pretto and Others judgment of 8 December 1983, Series A no. 71, p. 15, para. 34). (iii) Conduct of the competent courts (1) Berlin Social Court 81. The proceedings before the Berlin Social Court began on 16 June 1970 and ended on 7 December 1972, that is two years, five months and three weeks later. Yet on three occasions the case was declared to be ready for hearing, on 11 May 1971, then on 15 March 1972 and finally on 26 June 1972 (see paragraph 12 above). The case was thus dormant for one year, one month and two weeks. The Government acknowledged the existence of some delay, but attributed this primarily to the creation of a new chamber as a result of the increase in the court's workload, and to successive changes of presiding judge. The Government also stated that the nature of the case did not warrant its being given priority treatment. 82. According to the Court's established case-law, a temporary backlog of court business does not engage the international responsibility of the State concerned, provided that the State takes effective remedial action with the requisite promptness (see, as the most recent authority, the Guincho judgment of 10 July 1984, Series A no. 81, p. 17, para. 40). The evidence adduced by the Government does not support the conclusion that in the present case there occurred a sudden and unforeseeable increase in the number of actions being brought, thereby generating a temporary backlog of business. The changes of presiding judge represent a natural part of the life of a court and may occasion a degree of delay. The frequency of the changes within a very short period served to aggravate the situation as it already was in the circumstances. (2) Berlin Social Court of Appeal (first set of proceedings) 83. The case having been brought before it on 23 November 1972, the Berlin Social Court of Appeal notified its judgment to Mr. Deumeland on 14 September 1973, that is after nine months and three weeks. On the evidence, the procedure before this court was not subject to any delay. (3) Federal Social Court (first set of proceedings) 84. The first set of proceedings before the Federal Social Court ended one year and seven months after it had been commenced ( 11 October 1973 - 15 May 1975). There was a period of inactivity from 5 February 1974 (transmission to Mr. Deumeland of the defendant's pleadings) until 6 December 1974 (hearing). However, the applicant had expressed the wish on 1 July 1974 that the hearing should be held on 6 December (see paragraph 21 above). This being so, the interval in question is only partially attributable to the Federal Social Court. (4) Berlin Social Court of Appeal (second set of proceedings) 85. Of the five sets of proceedings brought by the applicant before the social courts, the second set before the Berlin Social Court of Appeal is the longest and most complicated. Three years and ten months elapsed between the notification of the judgment by the Federal Social Court (16 May 1975) and receipt by Mr. Deumeland of the judgment by the Social Court of Appeal (15 March 1979). 86. Two requests for communication of the case-file interrupted the course of the main proceedings; the first came from the public prosecutor's department attached to the Berlin Court of Appeal, and the second from the public prosecutor's department attached to the Berlin Regional Court (see paragraphs 28 and 31 above). The periods in question nevertheless remained relatively brief, that is to say, three weeks in one instance (28 August - 18 September 1975) and four months and two weeks in the other (29 July - 9 December 1976). These requests did not therefore have an appreciable incidence on the conduct of the proceedings. As far as the challenges of judges submitted by Mr. Deumeland to the Berlin Social Court of Appeal are concerned, the time it took to reject them was often considerable and, at first sight, surprising; thus, it took three years, four months and three weeks (26 May 1975 - 17 October 1978) in the case of Judge Matuczewski, one year, ten months and two weeks (4 August 1976 - 20 June 1978) in the case of Judge Brämer, and seven months (20 January - 19 August 1977) and three weeks (31 May - 20 June 1978) in the case of Judge Arndts (see paragraphs 25, 33, 35-37 and 40 above). Although these challenges did not perhaps greatly slow the progress of proceedings, the time taken to decide them would nonetheless appear to be excessive. (5) Federal Social Court (second set of proceedings) 87. The second set of proceedings before the Federal Social Court was commenced on 25 March 1979 and it terminated on 17 December 1980, that is to say, one year, eight months and three weeks later. Three periods of lack of activity merit attention (see paragraphs 43-44 above). The first runs from 9 July 1979 (dispatch to the parties of a statement by the Barmer Ersatzkasse) until 19 November 1979 (request to the Charlottenburg District Authority for documents), the second from 2 January 1980 (receipt of a file from the Land Administrative Authority) until 1 April 1980 (dispatch to Mr. Deumeland of a letter informing him of receipt of documents), and the third from 9 September 1980 (transmission of documents to the parties) until 11 December 1980 (hearing). The Government limited their observations to pointing out that in so far as the Federal Social Court had ordered communciation of all the various files, this had been done at the request of the applicant. 88. It suffices to note that the intervals of time in question, considered on their own, do not seem unreasonable, especially in view of the fact that the longest interval coincided largely with the court's vacation. (6) Federal Constitutional Court 89. The Federal Constitutional Court, for its part, dealt with the matter with great expedition, since it took only six weeks to deliver its ruling. (c) Overall assessment 90. In all, the litigation in issue extended over almost eleven years. Whatever might have been the value of the benefit being claimed, an interval of such length is abnormal for the circumstances, especially having regard to the particular diligence required in social security cases. It is true that the period under consideration is divided into six distinct phases, corresponding to six sets of proceedings, and that responsibility for its duration rests to a large degree with Mr. Deumeland himself. Nevertheless, a number of delays are attributable to the competent courts, primarily the Berlin Social Court and Social Court of Appeal (second set of proceedings). As a result of these delays, viewed together and cumulatively, the applicant's case was not heard within a reasonable time, as required by Article 6 para. 1 (art. 6-1). There has accordingly been a violation under this head. 2. Fair trial before an impartial tribunal 91. The applicant further complained that the claim had not been given a "fair hearing" before an "impartial tribunal". In his submission, the judges on the social courts exhibited a hostile attitude towards him for political reasons, failed in the duties incumbent upon them and delivered incorrect decisions in his case. The Government did not comment on these claims. 92. The Court would merely point out that Mr. Deumeland has not adduced a shred of evidence capable of supporting his allegations. II. APPLICATION OF ARTICLE 50 (ART. 50) 93. Article 50 (art. 50) of the Convention provides: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." 94. In his memorial of 27 March 1985 (see paragraph 6 above), Mr. Deumeland alleged "considerable material and non-material damage". Specifying that he would quantify the prejudice at a later date, he listed the following items: rejection by the German courts of all his claims; harmful effect of the conduct of the proceedings on his mother's health; award made against him of all the court costs incurred before the different social courts; attempts to hamper the practice of his profession; time devoted to the proceedings before the national courts, at the expense of his other activities; injury to his reputation. At the hearing, the applicant declared his readiness to deal in writing with the question of the possible application of Article (art. 50) and to reach "an inexpensive settlement". In response to a request by the President, he stated that he would subsequently file written submissions; he has not done so, however. Neither the Agent of the Government nor the Delegate of the Commission commented on his claims. 95. The breach of Article 6 para. 1 (art. 6-1) found by the Court relates essentially to a period of time when Mrs. Deumeland was still alive and had entrusted the defence of her case to her son (see paragraph 90 above). The latter, although he was living under the same roof as his mother (see paragraph 35 above), did not at that stage have the status of an "injured party" for the purposes of Article 50 (art. 50). He did, however, acquire that status on 8 December 1976 on the death of his mother, whose sole heir he is (see paragraph 35 above). 96. In respect of the material damage alleged, the applicant has not provided sufficient information. Accordingly, the Court rejects the claim under this head. 97. As far as the alleged non-material damage is concerned, it cannot be excluded that Mr. Deumeland's mother suffered some psychological distress during the period when the reasonable time had been exceeded. However, even supposing that she might have obtained financial compensation on this score, the Court sees no reason to grant any to the applicant himself since the present judgment affords him adequate just satisfaction. 98. The applicant made no other claim, in particular no claim for legal costs incurred in the proceedings before the Convention institutions. In the context of Article 50 (art. 50), the Court looks only to the items actually claimed; since no question of public policy is involved, the Court will not of its own motion inquire whether the applicant has been otherwise prejudiced (see the Sunday Times judgment of 6 November 1980, Series A no. 38, p. 9, para. 14). There is thus no call to award reimbursement of costs. FOR THESE REASONS, THE COURT 1. Holds, by nine votes to eight, that Article 6 para. 1 (art. 6-1) was applicable to the circumstances of the present case; 2. Holds, by nine votes to eight, that there has been a breach of Article 6 para. 1 (art. 6-1) as regards compliance with the requirement of trial within a reasonable time; 3. Holds, unanimously, that the foregoing finding in itself constitutes adequate just satisfaction for the purposes of Article (art. 50). Done in English and in French, and delivered at a public hearing at the Human Rights Building, Strasbourg, on 29 May 1986. Signed: Gérard WIARDA President Signed: Marc-André EISSEN Registrar The separate opinions of the following judges are annexed to the present judgment in accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 52 para. 2 of the Rules of Court : - joint dissenting opinion of Mr. Ryssdal, Mrs. Bindschedler-Robert, Mr. Lagergren, Mr. Matscher, Sir Vincent Evans, Mr. Bernhardt and Mr. Gersing; - dissenting opinion of Mr. Pinheiro Farinha; - concurring opinion of Mr. Pettiti and Mr. Russo. Initialled: G. W. Initialled: M.-A. E. JOINT DISSENTING OPINION OF JUDGES RYSSDAL, BINDSCHEDLER-ROBERT, LAGERGREN, MATSCHER, SIR VINCENT EVANS, BERNHARDT AND GERSING 1. We agree with the view of the majority of the Court as to the existence in the present case of a "contestation" (dispute) over a right claimed by the applicant's mother, Mrs. Deumeland. In our opinion, however, the dispute did not involve the determination of her "civil rights and obligations" ("droits et obligations de caractère civil"), within the meaning of Article 6 para. 1 (art. 6-1) of the Convention. Our conclusion, therefore, is that Article 6 para. (art. 6-1) is not applicable in the present case. 2. The majority finds that various "features of private law" comprised in the particular social security benefit claimed by Mrs. Deumeland so outweighed the "features of public law" as to confer on her claimed entitlement the character of a "civil right" for the purposes of Article 6 para. 1 (art. 6-1) (see paragraph 74 of the judgment). The relevant "features of private law" identified by the majority are, firstly, the personal and economic nature of the asserted right; secondly, the connection with the contract of employment; and, thirdly, the affinities with insurance under the ordinary law. In our view, the weakness in this reasoning is that the majority is taking as determining factors matters which may vary as between different social security systems and even from one category of benefit to another under the same system. We fear that this will give rise to uncertainty as to the obligations undertaken by the Contracting States in the field of social security by virtue of Article 6 para. 1 (art. 6-1) of the Convention. 3. Our reasons for finding Article 6 para. 1 (art. 6-1) to be inapplicable to the kind of right asserted by Mrs. Deumeland are as follows. 1. "Civil rights and obligations" - a limitative concept 4. Article 6 para. 1 (art. 6-1) lays down a procedural guarantee for the adjudication of certain disputes. The use of the expression "civil rights and obligations" must have been intended by the drafters of the Convention to set some limit on the application of Article 6 para. 1 (art. 6-1). The expression cannot be read as applying to disputes over the whole range of "rights and obligations" recognised by domestic law: the right or obligation in issue must be one that can be qualified as "civil". This adjective, however, is capable of bearing several meanings. The text of the Article (art. 6) is not sufficiently clear for it to be said, without more, which meaning was intended. 2. The Court's case-law 5. The Court's existing case-law gives some guidance as to where the line is to be drawn. 6. The starting point must in each case be the character attributed to the rights and obligations in question under the legal system of the respondent State. This, however, provides no more than an initial indication, as the notion of "civil rights and obligations" is an "autonomous" one within the meaning of the Convention and "cannot be interpreted solely by reference to the domestic law of the respondent State": "whether or not a right is to be regarded as civil within the meaning of this expression in the Convention must be determined by reference to the substantive content and effects of the right - and not its legal classification - under the domestic law of the State concerned" (see the König judgment of 28 June 1978, Series A no. 27, pp. 29-30, paras. 88-89). For this purpose, account should also be taken of the legal systems of the other Contracting States, notably to see whether there exists any uniform concept of "civil rights and obligations" such as would either embrace or exclude the facts of the present case (see the above-mentioned König judgment, Series A no. 27, p. 30, para. 89). 7. The Court has held that the phrase "contestations" (disputes) over "civil rights and obligations" covers all proceedings the result of which is decisive for private rights and obligations, even if the proceedings concern a dispute between an individual and a public authority acting in its sovereign capacity and irrespective of whether under the domestic legal system of the respondent State they fall within the sphere of private law or of public law or indeed are of a mixed character (see the Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, para. 94; the above-mentioned König judgment, Series A no. 27, pp. 30 and 32, paras. 90 and 94). Moreover, it is not enough for the dispute or the proceedings to have a tenuous connection with or remote consequences affecting civil rights or obligations: "civil rights and obligations must be the object - or one of the objects - of the 'contestation' (dispute); the result of the proceedings must be directly decisive for such a right" (see the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 21, para. 47). Beyond this, the Court has expressly reserved for future consideration the question whether the concept of "civil rights and obligations", within the meaning of Article 6 para. 1 (art. 6-1), extends beyond those rights which have a private nature (see the above-mentioned König judgment, Series A no. 27, p. 32, para. 95; and the above-mentioned Le Compte, Van Leuven and De Meyere judgment, Series A no. 43, p. 22, para. 48 in fine). 8. The Court's existing case-law has thus identified certain areas to which Article 6 para. 1 (art. 6-1) is applicable, whilst leaving open whether or not there might be other such areas. 3. Application of the Court's existing case-law to the particular facts 9. Under German law, the entitlement to a widow's supplementary pension asserted by Mrs. Deumeland is not private in character but is classified as a public-law right. Undoubtedly, under the statutory insurance scheme to which Mr. Deumeland Senior was subject, certain connections exist between the entitlement to industrial-accident allowances and the insured's current or former contract of employment, which contract does clearly fall within the domain of private law. Nonetheless, the provisions governing industrial-accident allowances do not constitute clauses incorporated by law in, or deriving from, the contract of employment; the claim is enforceable against a third party not privy to the contract; and the outcome of the claim does not directly affect the private legal relationship between the employer and employee created by the contract of employment, although it may have a certain incidence on performance of that contract. Hence it cannot be said that the proceedings brought by Mrs. Deumeland to enforce her claim to a widow's supplementary pension concerned, or entailed a result directly decisive for, a private right recognised by German law. Such consequences as there were for private rights were, in our view, too remote and tenuous to attract the application of Article 6 para. 1 (art. 6-1) on that ground alone. 10. We agree with the majority that the classification under German law, whilst it provides an initial indication, cannot be decisive, especially if it is out of line with the legal systems of the other Contracting States. However, as the majority concluded in paragraph 63 of the judgment, there exists no common European standard as regards the juridical nature of entitlement to industrial-accident allowances under statutory social security schemes. In particular, such entitlement is not generally recognised as being private in character. 11. Accordingly, the facts of the present case fall outside the private-right criteria for the application of Article 6 para. 1 (art. 6-1) as established under the Court's existing case-law. What remains to be determined is whether those facts nonetheless do come within the scope of Article 6 para. 1 (art. 6-1) on other grounds. 4. Relevant principles of interpretation 12. In order to ascertain the meaning of the "autonomous" notion of "civil rights and obligations" in Article 6 para. 1 (art. 6-1), regard must be had to the object and purpose of the Convention (see the above-mentioned König judgment, Series A no. 27, p. 30, para. 89). As a matter of general approach, in the interpretation of the Convention, which is an international treaty, it is appropriate for the Court to be guided by the 1969 Vienna Convention on the Law of Treaties (see the Golder judgment of 21 February 1975, Series A no. 18, p. 14, para. 29). The "general rule of interpretation", as set out in Article 31 para. 1 of the Vienna Convention, reads: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." Article 32 of the Vienna Convention further specifies that "recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31 ...". The Court has also recognised the need to construe the European Convention on Human Rights in the light of modern-day conditions obtaining in the democratic societies of the Contracting States and not solely according to what might be presumed to have been in the minds of the drafters of the Convention (see, inter alia, the Marckx judgment of 13 June 1979, Series A no. 31, p. 19, para. 41). 5. Characteristics of the asserted right 13. The pension right claimed by Mrs. Deumeland was an economic right deriving, not from the private contract between her husband and his employer, but from a collective scheme of protection of the working population set up by the legislature. An allocation of society's resources as generated within the employment context has been decided upon by the domestic legislature; and Mr. Deumeland Senior, as a member of the section of society concerned, was compelled to participate in that scheme. Such schemes represent performance of society's duty to protect the health and welfare of its members; they are not merely examples of the State taking on or regulating an insurance activity equally capable of being carried on by the private sector. Admittedly, concerning as it does the employment sphere, the German statutory scheme of industrial-accident insurance is bound to have some repercussions on, connections with or features in common with "civil rights and obligations" existing under the ordinary law in that sphere. Thus, the availability of industrial-accident allowances under the relevant provisions of the Reich Insurance Code is dependent upon there having been a contract of employment; the pension itself may be analysed as a kind of extension of the salary payable by the employer under the contract of employment; the statutory scheme of industrial-accident insurance could be said to have some affinity with classic insurance in the private sector. In our opinion, however, none of these factors alters the essential public character of the relationship between the individual and the collectivity which lies at the heart of the claimed statutory entitlement. 6. Context, object and purpose 14. It must therefore be determined, in the context of the provision and in the light of the object and purpose of the Convention, whether this kind of entitlement, despite its essential public character, is included within the notion of "civil rights and obligations", within the meaning of Article 6 para. 1 (art. 6-1). 15. The object and purpose of the Convention as pursued in Article 6 para. 1 (art. 6-1) are, to some extent, discernible from the nature of the safeguards provided. The judicialisation of dispute procedures, as guaranteed by Article para. 1 (art. 6-1), is eminently appropriate in the realm of relations between individuals but not necessarily so in the administrative sphere, where organisational, social and economic considerations may legitimately warrant dispute procedures of a less judicial and formal kind. The present case is concerned with the operation of a collective statutory scheme for the allocation of public welfare. As examples of the special characteristics of such schemes, material to the issue of procedural safeguards, one might cite the large numbers of decisions to be taken, the medical aspects, the lack of resources or expertise of the persons affected, the need to balance the public interest for efficient administration against the private interest. Judicialisation of procedures for allocation of public welfare benefits would in many cases necessitate recourse by claimants to lawyers and medical experts and hence lead to an increase in expenses and the length of the proceedings. The nature of the safeguards afforded thus tends to show that the object and purpose of Article 6 para. 1 (art. 6-1) do not go so far as to guarantee judicial control of the administration of statutory collective schemes for the distribution of public welfare. 16. We have not overlooked the fact that the overall object of the Convention is the humanitarian one of the protection of the individual and that, for the man or woman in the street, entitlement to social security benefits is of extreme importance for his or her daily life. However, as the Delegate of the Commission submitted, the economic importance for Mrs. Deumeland's livelihood of the allowance claimed is insufficient, on its own, to bring into play the applicability of Article 6 para. 1 (art. 6-1) and its specific judicial guarantees. Of course, it is equally essential that in the administrative field justice should be done and the individual's claims should be investigated in a responsible and objective manner in accordance with the rules laid down, but that is not to say that all the various requirements of Article 6 para. 1 (art. 6-1) of the Convention are therefore applicable. Indeed, as pointed out above in the present opinion (at paragraph 15), there exist underlying considerations justifying special procedures in social welfare cases. 17. This being so, the juxtaposition of "civil" and "criminal" in the context of Article 6 para. 1 (art. 6-1) cannot reasonably be taken to be a comprehensive reference to all systems of adjudicative proceedings under domestic law. On this construction, the use of the adjective "civil" would not therefore imply the applicability of Article 6 para. 1 (art. 6-1) to disputes over all matters other than "criminal" even where, as in social security disputes, the outcome is crucial for the personal life of the individual concerned. 18. These considerations point to the conclusion that, in principle, the collective and public features of the statutory insurance scheme giving entitlement are so predominant as to take the rights and obligations in issue outside the "civil" domain, within the meaning of Article 6 para. 1 (art. 6-1). 7. Supplementary means of interpretation 19. The foregoing analysis is corroborated by the fact that the relevant legislation predates the elaboration of the Convention by some decades, and there existed similar legislation predating the Convention in many other of the Contracting States. It is therefore reasonable to assume that the intention of the drafters of Article 6 para. 1 (art. 6-1) was not to include such statutory schemes of collective social protection within its ambit. On examination, the drafting history confirms this reading of the text. 20. The adjective "civil" was added to the English version of Article 6 para. 1 (art. 6-1) in November 1950 on the day before the Convention was opened for signature, when a committee of experts examined the text of the Convention for the last time and "made a certain number of formal corrections and corrections of translations" (Collected Edition of the Travaux préparatoires of the European Convention on Human Rights, vol. VII, p. 12, para. 6). Whilst no specific explanation was given for the last-minute change to Article 6 para. 1 (art. 6-1), it is a fair inference that the reason was merely to align the English text more closely with the language of the French text: prior to the change, although the French version had spoken, as now, of "droits et obligations de caractère civil", the English version had read "rights and obligations in a suit of law" (ibid., vol. V, p. 148). These two expressions had first been introduced at a meeting (March 1950) of the Committee of Experts on Human Rights of the Council of Europe and were evidently taken directly from the equivalent Article of the then existing draft of the International Covenant on Civil and Political Rights of the United Nations (ibid., vol. II, p. 296; vol. III, pp. 30, 160, 284, 290, 316; vol. IV, p. 60). It is therefore relevant to trace their history in the travaux préparatoires of the International Covenant. 21. The crucial discussion on the draft International Covenant took place on 1 June 1949 during the fifth session of the United Nations Commission on Human Rights. The French and Egyptian delegations had presented an amendment that referred to "droits et obligations"/"rights and obligations", without qualification. The reaction of the Danish representative (Mr. Sørensen) to this amendment was reported as follows: "The representatives of France and Egypt proposed that everyone should have the right to have a tribunal determine his rights and obligations. Mr. Sørensen considered that that provision was much too broad in scope; it would tend to submit to judicial decision any action taken by administrative organs exercising discretionary power conferred on them by law. He appreciated that the individual should be ensured protection against any abuse of power by administrative organs but the question was extremely delicate and it was doubtful whether the Commission could settle it there and then. The study of the division of power between administrative and judicial organs could be undertaken later. ... Mr. Sørensen asked the representatives of France and Egypt whether the scope of the provision in question might be limited to indicate that only cases between individuals and not those between individuals and the State were intended." (summary record of the 109th meeting, doc. E/CN.4/SR.109, pp. 3-4) The French representative (Mr. Cassin), speaking in French, replied that "the Danish representative's statement had convinced him that it was very difficult to settle in that article all questions concerning the exercise of justice in the relationships between individuals and governments" (ibid., p. 9). He was therefore prepared to let the words "soit de ses droits et obligations" in the first sentence of the Franco-Egyptian amendment be replaced by the expression "soit des contestations sur ses droits et obligations de caractère civil" (rendered in the English version of the summary record as "or of his rights and obligations in a suit of law"). He agreed that the problem "had not been fully thrashed out and should be examined more thoroughly". Later the same day, a drafting committee produced a text which contained the expressions "in a suit of law" in English and "de caractère civil" in French (doc. E/CN.4/286). The formula employed in this text is the one that was ultimately adopted for Article 14 of the International Covenant in 1966. 22. It thus seems reasonably clear that the intended effect of the insertion of the qualifying term "de caractère civil" in the French text of the draft International Covenant was to exclude from the scope of the provision certain categories of disputes in the field of administration "concerning the exercise of justice in the relationships between individuals and governments". 8. State practice and evolutive interpretation 23. It is not the case that, since the entry into force of the Convention, State practice has developed to the point where the Contracting States can be said to treat entitlement to industrial-accident allowances under statutory social security schemes as giving rise to "civil rights and obligations" for the purposes of Article 6 para. 1 (art. 6-1). Indeed, as noted above (see paragraph 10), no common ground can be identified in the legal systems of the Contracting States as to the "civil" or other character of such entitlement. In sum, there is no uniform European approach in this regard such as to run counter to the interpretation we have reached on the basis of the other foregoing considerations. On the contrary, the diversity of approach existing even today tends to show that whether judicial protection of the kind guaranteed by Article 6 para. 1 (art. 6-1) should be afforded to claims, such as Mrs. Deumeland's, for industrial-accident allowances is a policy decision for the Contracting States to take in the light of the various merits and disadvantages involved, but it is not as such required by Article 6 para. 1 (art. 6-1) itself. 24. Neither does an evolutive interpretation of Article 6 para. (art. 6-1) lead to a different conclusion. The Convention is selective in the protection it affords, as is shown by the recital in the Preamble wherein the signatory Governments expressed their underlying resolve to be "to take the first steps for the collective enforcement of certain of the rights stated in the [United Nations] Universal Declaration" of Human Rights (see the above-mentioned Golder judgment, Series A no. 18, p. 16, para. 34). An evolutive interpretation allows variable and changing concepts already contained in the Convention to be construed in the light of modern-day conditions (see, for example, the Tyrer judgment of 25 April 1978, Series A no. 26, pp. 15-16, para. 31; the above-mentioned Marckx judgment, Series A no. 31, pp. 19-20, para. 41; the Dudgeon judgment of 22 October 1981, Series A no. 45, pp. 23-24, para. 60), but it does not allow entirely new concepts or spheres of application to be introduced into the Convention: that is a legislative function that belongs to the member States of the Council of Europe. The desirability of affording proper safeguards for the adjudication of claims in the ever-increasing field of social security is evident. There are, however, limits to evolutive interpretation and the facts of the present case go beyond those limits as far as Article 6 para. (art. 6-1) is concerned. We do not find the considerable developments witnessed in the social welfare field since the elaboration of the Convention to be such as to alter the essential character of the rights and obligations in issue in the action instituted by Mrs. Deumeland. 9. Conclusion 25. Having regard to the text of Article 6 para. 1 (art. 6-1), to its object and purpose and to its drafting history, the conclusion of principle which we draw is that there exist areas within the field of public administration subject to special institutional regimes, such as that relating to social security, under which the rights and obligations of the individual not of a private nature may justifiably, for various reasons (see paragraph 15 above), be determined by special procedures of adjustment rather than by tribunals complying with all the requirements of Article 6 para. 1 (art. 6-1). In our view, the guarantees of Article 6 para. 1 (art. 6-1) attaching to "contestations" (disputes) over "civil rights and obligations" do not apply to disputes within such areas unless, as stated in the Court's case-law (see paragraph 7 above), the outcome of the dispute is directly decisive for private rights. In the light of all the various considerations set out above, we accordingly conclude that the proceedings brought by Mrs. Deumeland and subsequently continued by her son before the German social courts did not involve determination of "civil rights and obligations", within the meaning of Article 6 para. 1 (art. 6-1); and that the judicial guarantees of this provision were therefore not applicable to the circumstances of the instant case. DISSENTING OPINION OF JUDGE PINHEIRO FARINHA (Translation) 1. Article 6 para. 1 (art. 6-1) of the Convention guarantees a fair trial in the determination of a person's "civil rights and obligations" and of "any criminal charge against him". 2. No question of a "criminal charge" arises in the present case. Did the facts involve the determination of civil rights and obligations? 3. Mr. Deumeland Senior was an employee (Angestellter) of the Berlin City Authorities and he was compulsorily insured against industrial accidents (see paragraph 10 of the judgment). For employees of private firms, the bodies responsible for insurance against industrial accidents are the occupational associations (Berufsgenossenschaften) (see paragraph 52 of the judgment), whose funds are provided by the employers by means of private contributions which depend essentially on the salaries of the persons covered and on the likelihood of accidents (see paragraph 51). In Berlin, Land employees are covered by the Industrial Accident Insurance Office (Eigenunfallversicherung), a public body directly controlled by the Land authority and financed chiefly by a sum included annually in the Land budget, that is by public monies, and for the rest by contributions paid by certain public concerns (see paragraph 53). The contract of employment constituted a mere condition of entitlement and Mr. Deumeland Senior had not paid any contributions towards the insurance. 4. I conclude - by reason of the lack of dependence on the occupational associations, the connection with a public body under the direct control of the Land, and the funding of this industrial-accident insurance which was chiefly provided from the budget of the Land - that one cannot speak of a determination of a "civil right" and that Article 6 (art. 6) was not applicable and hence not breached. CONCURRING OPINION OF JUDGES PETTITI AND RUSSO (Translation) We have voted with the majority in favour of the applicability and violation of Article 6 (art. 6). What was crucial for our vote was the predominance of the features of civil law in the succession of very different proceedings brought by the members of the Deumeland family. 1. At the origin of the affair was a street accident suffered by Mr. Deumeland Senior. The fact of his being granted or not being granted benefits as the victim of an industrial accident on the way to or from work does not alter the nature of the right at issue. The damage sustained as a result of the accident could raise an issue of civil liability or criminal liability entailing civil consequences on the part of the owner of the building in front of which the snow-covered pavement caused the fall of Mr. Deumeland Senior. 2. The principal litigation was concerned with the possible causal link between the accident on the way home from work (in so far as treated as an industrial accident) and the death of Mr. Deumeland Senior. This, if established, would have entailed the attribution of additional years of service between the date of the accident and the date of the death, which would in turn have increased to a certain extent the old-age pension received by Mrs. Deumeland. What was at stake was not a supplementary insurance, but the basis of calculation of a pension. 3. A further feature of civil law is to be found in the procedural incident concerning the proof of Mr. Deumeland Junior's status as heir. 4. The action for recovery of damages that could have been brought against the owner of the building as a result of the Industrial Accident Insurance Office being subrogated to the rights of Mr. Deumeland Senior related to a civil liability claim. It was for those concerned to reserve their right of action against the building owner. The final refusal of responsibility by the Insurance Office could have raised another issue of liability. All these features - subrogation, surrender of rights, exercise of the right to sue - are features of civil law. The Court has situated the unreasonable length of the proceedings mainly in the period relating to the litigation concerning the causal link and to the subsequent procedural incidents, and not in the first stage of the social insurance dispute which dealt with whether the accident on the way home from work should be classified as an industrial accident. The Deumeland case does not, in our view, involve putting in issue the German system for settlement of social insurance disputes concerning industrial accidents. The extremely interesting controversy - which is remarkably expounded in the separate opinion of the minority - surrounding the interpretation of the travaux préparatoires of the United Nations and the Council of Europe in connection with the expression "civil rights and obligations" does not necessarily furnish a crucial element of appraisal, having regard to the particular circumstances of the present case and to the predominant features of private law described above. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII